Citation Nr: 1027741
Decision Date: 07/23/10 Archive Date: 08/02/10
DOCKET NO. 00-14 783 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUE
Entitlement to a disability rating in excess of 20 percent for
simple partial seizures with cognitive disorder for the period
subsequent to August 5, 2002.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. E. Wilkerson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1967 to July 1997.
This matter is before the Board of Veterans' Appeals (Board) on
appeal from a rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In June 2006, the Board denied the Veteran's claim for and
increased rating in excess of 10 percent for the period prior to
August 2002; and in excess of 20 percent for the period
subsequent to August 2002. The Veteran appealed the Board's
decision with respect to the denial of the increased ratings to
the United States Court of Appeals for Veterans Claims (Court).
In an Order dated in April 2008, the Court vacated the Board's
June 2006 decision on these issues, and remanded the matter to
the Board for further proceedings consistent with the joint
motion of the parties. The Board then granted a 20 percent
rating for the period prior to August 5, 2002, and remanded the
case with respect to the Veteran's claim for an increased rating
in excess of 20 percent for the period subsequent to August 5,
2002. It has since returned to the Board for further appellate
action.
FINDING OF FACT
For the period subsequent to August 5, 2002, the Veteran's simple
partial seizures with cognitive disorder have been shown to be
productive of a disability picture that more nearly approximates
at least two minor seizures in a six month period.
CONCLUSION OF LAW
The criteria for a disability rating higher than 20 percent for
simple partial seizures with cognitive disorder subsequent to
August 5, 2002, have not been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107, 7104 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8911 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified in
pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp.
2009), and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2009), provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is not
required to provide assistance to a claimant if there is no
reasonable possibility that such assistance would aid in
substantiating the claim. They also require VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate the
claim. As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. Although the regulation previously
required VA to request that the claimant provide any evidence in
the claimant's possession that pertains to the claim, the
regulation has been amended to eliminate that requirement for
claims pending before VA on or after May 30, 2008.
The Board also notes that the United States Court of Appeals for
Veterans Claims (Court) has held that the plain language of 38
U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to
the VCAA be provided "at the time" that, or "immediately
after," VA receives a complete or substantially complete
application for VA-administered benefits. Pelegrini v. Principi,
18 Vet. App. 112, 119 (2004).
In the case at hand, the record reflects that the originating
agency provided the Veteran with the notice required under the
VCAA by letters mailed in February 2005 and March 2009. These
letters provided appropriate notice to the Veteran regarding what
information and evidence was needed to substantiate his claim for
an increased rating to include how effective dates are
established. They also included information on how VA determines
the disability rating by use of the rating schedule, and provided
examples of the types of medical and lay evidence that the
claimant may submit (or ask the Secretary to obtain), to include
treatment records, Social Security determinations, statements
from employers concerning the impact of the disability on the
Veteran's employment, and statements from persons concerning
their observations of how the disability has affected the
Veteran. They also informed the Veteran of the assistance that
VA would provide to obtain evidence on his behalf, as well as
what information and evidence must be submitted by the Veteran.
Although these notice letters were provided after the initial
adjudication of the claim, the Board finds that the Veteran has
not been prejudiced by the timing of the letters. See Bernard v.
Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board
notes that following the provision of the required notice and the
completion of all indicated development of the record, the
Appeals Management Center (AMC) readjudicated the Veteran's
claim. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A
timing error may be cured by a new VCAA notification followed by
a readjudication of the claim). There is no indication or reason
to believe that the ultimate decision of the originating agency
on the merits of the claim would have been different had complete
VCAA notice been provided at an earlier time.
The Board also notes that the Veteran has been afforded
appropriate VA examinations and service treatment records and
pertinent VA medical records have been obtained. Neither the
Veteran nor his representative has identified any outstanding
evidence, to include medical records, that could be obtained to
substantiate the claim. The Board is also unaware of any such
outstanding evidence.
As noted in the Introduction, the Veteran's case was remanded in
February 2009. The purpose of this remand was to provide notice
in compliance with Vazquez-Flores v. Peake, 22 Vet. App. 37
(2008)-- a case which has since been overturned, to obtain any
outstanding treatment records pertaining to the Veterans seizure
disorder from August 5, 2002, to the present, and to afford the
Veteran another VA examination to assess the current severity of
his seizer disorder.
The record reflects that in March 2009, a letter was mailed to
the Veteran that included Vazquez-Flores notice and a request for
any additional treatment records. The Veteran did not respond to
this letter indicating that there were any outstanding medical
records. Then, the Veteran was afforded a VA examination in
April 2010. Thus, all of the Board's remand instructions have
been complied with. See Stegall v. West, 11 Vet. App. 268, 271
(1998) (where the remand orders of the Board are not complied
with, the Board errs as a matter of law when it fails to ensure
compliance).
In sum, the Board is satisfied that any procedural errors in the
originating agency's development and consideration of the claim
were insignificant and non prejudicial to the Veteran.
Accordingly, the Board will address the merits of the claim.
Legal Criteria
Disability evaluations are determined by the application of the
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4 (2009). The percentage ratings contained in the
Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity resulting
from diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009).
The Veteran's seizure disorder is currently rating under
38 C.F.R. § 4.124a, Diagnostic Code 8911 for epilepsy, petit mal.
Under Diagnostic Code 8911, a 10 percent evaluation is assigned
for a confirmed diagnosis of epilepsy with a history of seizures.
A 20 percent evaluation is assigned for 1 major seizure during
the preceding 2 years or 2 minor seizures during the preceding 6
months. A 40 percent evaluation is warranted for at least 1
major seizure in the last 6 months or 2 in the last 6 years or
averaging at least 5 to 8 minor seizures weekly. An 80 percent
evaluation is warranted for averaging at least 1 major seizure in
3 months over the last year or more than 10 minor seizures
weekly. A 100 percent evaluation is assigned for an average of
at least 1 major seizure per month over the last year.
A note following Diagnostic Code 8911 indicates that a major
seizure is defined as including unconsciousness. A minor seizure
consists of a brief interruption in consciousness or conscious
control associated with staring or rhythmic blinking of the eyes
or nodding of the head or sudden jerking movement of the arms,
trunk, or head or sudden loss of postural control.
Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7.
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits under
laws administered by the Secretary. The Secretary shall consider
all information and lay and medical evidence of record in a case
before the Secretary with respect to benefits under laws
administered by the Secretary. When there is an approximate
balance of positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary shall
give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its
merits, the evidence must preponderate against the claim. Alemany
v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet.
App. at 54.
Analysis
In accordance with 38 C.F.R. §§ 4.1, 4.2 (2009) and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all
evidence of record pertaining to the history of the Veteran's
service-connected simple partial seizures with cognitive
disorder. The Board has found nothing in the historical record
which would lead to the conclusion that the current evidence of
record is not adequate for rating purposes. Moreover, the Board
is of the opinion that this case presents no evidentiary
considerations which would warrant an exposition of remote
clinical histories and findings pertaining to the disability. In
this regard the Board notes that where entitlement to
compensation has already been established and an increase in the
disability is at issue, the present level of disability is of
primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The Veteran was granted service connection for simple partial
seizures with cognitive disorder in an August 1998 rating
decision. A 10 percent rating was assigned, effective August 2,
1997. In January 2003, the disability rating was increased to
20 percent, effective August 5, 2002. As noted above, the Board
then assigned a 20 percent rating for the period prior to August
5, 2002. The issue remaining on appeal is entitlement to a
disability rating in excess of 20 percent for the period from
August 5, 2002.
The Board notes that the medical evidence of record from this
time period consistent mainly of VA outpatient treatment records.
In June 2002, the Veteran reported experiencing seizures. These
records also note an episode of cervical numbness in May 2004,
but do not indicate that the Veteran had suffered from any
seizures around that time. There is also no indication that the
Veteran suffered from a major seizure involving loss of
consciousness during the period on appeal.
The Veteran was also afforded a VA examination in April 2010. At
that time, the Veteran reported no doctor prescribed bed rest,
incapacitation, or hospitalization due to seizure disorder in the
last twelve months. He also stated that he did not experience
any impediment to the activities of daily living or instrumental
activities of daily living due to his seizure disorder. He
reported that there was no impediment to his usual occupation,
and that he had never had his driving privileges revoked. The
Veteran stated that he took tizanidine, a muscle relaxer, for his
seizure disorder-though the examiner noted that his records
showed that this medication was prescribed for muscle spasm and
low back pain. The Veteran reported that he believed that he had
not had another seizure episode in at least two years. The
examiner concluded by assessing that there was no objective
evidence of seizure disorder.
The record also contains the Veteran's February 2004 Decision
Review Officer (DRO) hearing testimony. During the hearing, the
Veteran testified that he experienced seizures with random
frequency in occurrence. He stated that he never lost
consciousness during a seizure and can hear and speak during one,
but that he experienced symptoms of numbness. The Veteran also
reported that the longest seizure he experienced was fifteen
minutes in duration.
A number of statements from the Veteran's friends, coworkers and
statements indicate that they have observed the Veteran's
seizures. They note symptoms such as dizziness, difficulty
focusing, a pale face, and some loss of coordination.
Based on the foregoing evidence, the Board has determined that
the Veteran is not entitled to a disability rating in excess of
20 percent for his simple partial seizures with cognitive
disorder for the period subsequent to August 5, 2002. The
medical evidence of record does not establish that the Veteran
had experienced a major seizure in the last six months or two in
the last six years or averaging at least five to eight minor
seizures weekly at any point during the period on appeal, which
is necessary for a higher 40 percent rating. Based on the
Veteran's descriptions of his seizures during the DRO hearing,
the Board has determined that his seizures more nearly
approximate "minor" seizures contemplated under Diagnostic Code
8911. The record does not demonstrate that the Veteran had
suffered from minor seizures approximately five to eight times
per week. In fact, on a recent examination, the Veteran denied
experiencing a seizure in at least two years. Therefore, the
Veteran is not entitled to a higher rating.
The Board has found no other basis to assign a higher rating for
the Veteran's simple partial seizures with cognitive disorder.
Consideration has been given to assigning a staged rating;
however, at no time during the period in question has the
disability warranted more than a 20 percent rating. See Hart v.
Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet.
App. 119 (1999).
The Board has also considered whether this case should be
referred to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1). The Court has held that the threshold factor for
extra-schedular consideration is a finding on part of the RO or
the Board that the evidence presents such an exceptional
disability picture that the available schedular evaluations for
the service-connected disability at issue are inadequate.
Therefore, initially, there must be a comparison between the
level of severity and the symptomatology of the claimant's
disability with the established criteria provided in the rating
schedule for the disability. If the criteria reasonably describe
the claimant's disability level and symptomatology, then the
disability picture is contemplated by the rating schedule, the
assigned evaluation is therefore adequate, and no referral for
extra-schedular consideration is required. Thun v. Peake, 22
Vet. App. 111 (2008).
In the case at hand, the record reflects that the Veteran has not
required frequent hospitalizations for the disability and that
the manifestations of the disability are not in excess of those
contemplated by the schedular criteria. In sum, there is no
indication that the average industrial impairment from the
disability would be in excess of those contemplated by the
assigned rating. Accordingly, the Board has determined that
referral of this case for extra-schedular consideration is not in
order.
ORDER
Entitlement to a disability rating in excess of 20 percent for
simple partial seizures with cognitive disorder for the period
subsequent to August 5, 2002, is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs